One-Way Ticket Home: the Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L

Cornell Law Review Volume 77 Article 5 Issue 3 March 1992 One-Way Ticket Home: The edeF ral Doctrine of Forum Non Conveniens and the International Plaintiff Jacqueline Duval-Major Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Jacqueline Duval-Major, One-Way Ticket Home: The Federal Doctrine of Forum Non Conveniens and the International Plaintiff, 77 Cornell L. Rev. 650 (1992) Available at: http://scholarship.law.cornell.edu/clr/vol77/iss3/5 This Note is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ONE-WAY TICKET HOME: THE FEDERAL DOCTRINE OF FORUM NON CONVENIENS AND THE INTERNATIONAL PLAINTIFF I INTRODUCTION Forum non conveniens is a common law doctrine that allows a court to dismiss a case, although personal jurisdiction and venue are proper, when such a dismissal would serve the convenience of the parties and the ends ofjustice.I Although the development of sec- tion 1404(a) transfers has fundamentally limited forum non conveniens, 2 the doctrine retains some vitality at the federal level when the alternative forum is a foreign court rather than another district court in the United States.3 Only defendants may invoke the doctrine of forum non con- 4 veniens, because plaintiffs have the original choice of forum. United States-based multinational corporations (MNCs) constitute the main group of defendants who currently benefit from the doctrine.5 Frequently, MNCs are the defendants in actions by foreign 1 See generaily Paxton Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 COLUM. L. REV. 1 (1929). See also Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 CAL. L. REV. 380 (1947); Alexander M. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 CORNELL L.Q. 12 (1949). 2 28 U.S.C. § 1404(a) (1990). See infra notes 42-54 and accompanying text. 3 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (holding that transfer is not applicable because there is no alternative district court and a United States court has no power to transfer a case to a foreign court). 4 In contrast, either a plaintiff or defendant can move to transfer under § 1404(a). See Ferens v. John Deere Co., 494 U.S. 516 (1990); infra notes 46-47. 5 These cases generally involve injuries that occur in a foreign nation, yet are al- legedly attributable to the activities of a United States MNC. See, e.g., Stewart v. Dow Chem. Co., 865 F.2d 103 (6th Cir. 1989) (Canadian plaintiff suing U.S. manufacturer of toxic herbicides); Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374 (5th Cir. 1988) (Brazilian seaman killed in diving accident suing U.S. manufacturer of diving hel- met); DeMelo v. Lederle Lab., 801 F.2d 1058 (8th Cir. 1986) (Brazilian plaintiff suing U.S. producer of drug on products liability basis); Sibaja v. Dow Chem. Co., 757 F.2d 1215 (1 1th Cir. 1985) (Costa Rican workers suing U.S. producer of chemical alleging exposure caused sterility); Dahl v. United Technologies Corp., 632 F.2d 1027 (3d Cir. 1980) (Norwegian plaintiffs suing U.S. manufacturer of helicopter for injuries sustained in crash); Ball v. Deere & Co., 684 F. Supp. 1455 (C.D. Ill. 1988) (Canadian plaintiff suing U.S. combine manufacturer for injuries); Ledingham v. Parke-Davis, 628 F. Supp. 1447 (E.D.N.Y. 1986) (Canadian plaintiff suing U.S. manufacturer of drug alleging mother's use during pregnancy caused birth defects); Fraizer v. St. Jude Medical, Inc., 609 F. Supp. 1129 (D. Minn. 1985) (Danish citizens suing U.S. manufacturer of heart valve on products liability theory); Rubenstein v. Piper Aircraft Corp., 587 F. Supp. 460 (S.D. Fla. 1984) (German plaintiffs suing U.S. manufacturer of airplane for wrongful 650 1992] NOTE-FOR UM NON CONVENIENS plaintiffs for injuries that have occurred in a foreign country, and they often invoke the doctrine of forum non conveniens to avoid defending these claims. This application of the doctrine, however, allows MNCs to evade responsibility for serious harms they cause, and leaves the foreign plaintiffs with limited recourse in a foreign forum due to the outcome determinative effect of dismissal. 6 This Note explores the current federal doctrine of forum non conveniens as applied to the foreign plaintiff. It examines the policy concerns and arguments that call for the doctrine's modification to comport more closely with the modern technological advances available to litigants and the realities facing foreign plaintiffs seeking justice in United States courts. Further, this Note argues that, in many cases, the current "minimum contacts" test for personal jurisdiction 7 already takes the convenience of the parties into account and screens out cases that would improperly impose on the power of a court.8 Also, forum non conveniens will cause some foreign plaintiffs dismissed from United States courts to face harsh conse- quences. These plaintiffs may have limited or no recourse in any alternative forum. This Note urges that the United States has a vital policy interest in not allowing United States MNCs to escape liability for personal injuries and environmental torts even when the primary effects of these harms are felt abroad. The Note proposes that the doctrine of forum non conveniens itself needs to be re-examined, because it fails to adequately serve the interests it purports to protect. Modern technological advances in transportation and communications make any forum more con- venient today than when the doctrine was first adopted by the Supreme Court in 1947.9 In addition, although courts find forum non conveniens alluring as a method of docket-clearing, the doctrine does not fully accomplish this- task. 10 Finally, a grant of dismissal for forum non conveniens is based on a vague set of factors that leaves much to the discretion of the trial court. 1 This unclear standard has been further diluted since the original adoption of the test in 1947.12 Moreover, appellate re- death); Agyenkwa v. American Motors Corp., 622 F. Supp. 242 (E.D.N.Y. 1985) (Ghana citizen suing U.S. manufacturer of automobile). 6 For a discussion of the outcome determinative effect of forum non conveniens dismissals, see infra notes 164-71 and accompanying text. 7 International Shoe Co. v. Washington, 326 U.S. 310 (1945). 8 Id. at 317. See infra notes 105-46 and accompanying text. 9 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). 10 See infra notes 199-203 and accompanying text. 11 See infra notes 27-40 and accompanying text. 12 See ifra notes 211-24 and accompanying text. 652 CORNELL LA W REVIEW [Vol. 77:650 view is limited to an abuse of discretion standard,' 3 and dismissals are virtually never overturned. This Note argues for three modifications to the modern doctrine of forum non conveniens. First, it calls for an abolition of the modern presumption that a foreign plaintiff's choice of forum is entitled to little deference in United States courts. Second, it prescribes a stricter, more specific test for determination of the ap- propriateness of an invocation of forum non conveniens. Third, the Note emphasizes the need for de novo appellate review of a trial court's determination of forum non conveniens. If the rationale for forum non conveniens is to serve "the ends of justice,"'14 then justice requires these modifications to forum non conveniens to reflect fairness to all litigants. II MODERN APPLICATION OF FORUM NON CONVENIENS A. Background Forum non conveniens is a judicially created doctrine that first gained official approval in the United States federal courts in 1947 with the Supreme Court case Gulf Oil Corp. v. Gilbert.15 The doctrine allows a court to "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute."1 6 The effect of a finding of forum non conveniens is dismissal of the action.1 7 Because dismissal is a harsh result for plaintiffs, courts may impose the doctrine only when an alternative forum exists.' An alternative forum, as described by the Gulf Court, is simply one where the defendant is "amenable to process."' 9 The rationale for forum non conveniens is to prevent a plaintiff from invoking the power of the court to harass a defendant. 20 Even if the litigants are within the court's jurisdiction, the court may dismiss the case when it believes the plaintiff is using an inconvenient forum merely to antagonize the defendant, or when the cause of 13 Gulf, 330 U.S. at 508. 14 Id. at 507. 15 330 U.S. 501 (1947). However, the GufCourt did note that the Court had rec- ognized a federal court's power to decline jurisdiction in the past, albeit under different nomenclature. Id. at 504-06. State courts adopted the doctrine earlier. Id. at 505 n.4. 16 Id. at 507. 17 Only a defendant can move for a forum non conveniens dismissal, whereas either party can move for a change of venue under 28 U.S.C. § 1404(a) (1990). See infra notes 46-47 and accompanying text. 18 Gulf, 330 U.S. at 507. 19 Id. 20 Id. 1992] NOTE-FORUM NON CONVENIENS 653 action has no bearing on the community served by the court.21 For example, a plaintiff may endure great personal inconvenience in or- der to sue a defendant in a forum which has little connection to the cause of action, but which she knows is equally inconvenient to the defendant.

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